Acceptance: Purchase order is an offer by the Hobart Electronics. (hereafter called as the “Buyer”) for the purchase of the goods (the “Goods” or “Items”) or services (the “Services”) specified, from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”). This Order will be deemed accepted by the Seller upon the first of the following to occur: (a) Seller making, signing, or delivering to Buyer any letter, form, or other writing or instrument acknowledging acceptance; (b) any performance by Seller under the Order; or (c) the passage of seven (7) days after Seller’s receipt of the Order without written notice to Buyer, it’s deemed that the Seller did not accept the order. This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties.
Delivery and Shipping Terms: Seller shall deliver the Goods and/or perform the Services at the delivery point (the “Deliver Location”), and on the date(s) specified in this Order (the “Delivery Date”). If no delivery date is specified, Seller shall deliver in full within a reasonable time of receipt of the Order. Timely delivery is of the essence and a requirement of our Supplier Agreements, ALL Suppliers must meet or exceed a delivery standard of no less than 95% On-Time Delivery. If Seller fails to deliver the Goods or Services in full, on the Delivery Date, Buyer may terminate the Order immediately and Seller shall indemnify Buyer against any losses, damages, and reasonable costs and expenses incurred by the Buyer as result of Seller’s failure to deliver on time. Delivery shall be made in accordance with the Terms of this Order. The Order number must appear on all documents pertaining to the Order, invoices, packing lists, correspondence, and all shipping documents. Seller shall not substitute Ordered Items nor shall Seller ship in excess or shortage of ordered items without the Buyer’s prior written consent. Supplier shall be solely responsible for and pay, all costs of delivering the Goods to the Delivery Location, including, without limitation, all shipping and freight costs and all duties.
Inspection: Buyer reserves the right to inspect all Goods on or after the Delivery Date. All Sellers are required to meet or exceed a 95% quality acceptance standard which will be dictated to the seller via a monthly score card. The Buyer, at its sole option, may reject all or any portion of the Goods if it determines the Goods are defective or nonconforming. Seller is required to deliver replacement Goods within a 24 to 48 hour period, however the Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for any cause. Any inspection or other action by Buyer under this Section shall not affect Seller’s obligations under the Order, and Buyer shall have the right to further inspection after Seller takes remedial action.
Return of Rejected Ordered Items : If any Ordered Items are found to be defective in material or workmanship (including Ordered Items damaged because of unsatisfactory packaging by Seller), or otherwise not in strict conformity with the requirements of this Purchase Order, including drawings and specifications and approved samples, if any, then Buyer, in addition to any other rights and remedies which it may have under this Purchase Order or applicable law, has the right in its sole discretion to (a) reject and return such Ordered Items at Seller’s expense and to receive a full credit for any such rejected Ordered Items, (b) require correction or replacement of any such rejected Ordered Items without additional cost to Buyer, or (c) retain and use the Ordered Items with an equitable reduction due to any labor incurred for repair from the original purchase price. Rejected Ordered Items returned to Seller shall not be reshipped to Buyer without prior written authorization. Seller shall bear all risks as to rejected items after notice of rejection.
Price and Payment: The price of the Goods or Services is the price stated on the face of this Order (the “Price”). Seller shall invoice Buyer for the Order within fourteen (14) days of delivery. Unless otherwise stated in the Order, Buyer shall pay all properly invoiced amounts due to Seller as per purchase order terms after receipt of such invoice, except for any amounts disputed by Buyer. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute. Without prejudice to any other right or remedy, Buyer reserves the right to set off any amount owing to it by Seller against any amount payable by Buyer to Seller. Payment of an invoice is not evidence or admission that the Goods or Services meet the requirements of the Order.
Taxes: Unless specified otherwise on the face of the Order, the prices are inclusive of, and Seller shall be solely responsible for and pay, all federal, state, and local taxes, including, but not limited to, value added tax, goods and services tax, sales, use or consumption tax.
Change in Order / Delivery Schedule: Buyer may, from time to time, initiate changes by issuing to Seller written notices (each, a “Change Order”) that alter, add to, or deduct from the Goods or Services, but that are otherwise subject to the Terms of this Order. Seller will promptly comply with the terms of any Change Order. Any goods delivered following a change order that doesn’t comply, will be rejected unless previously agreed upon.
The Supplier acknowledges that in entering into the Purchase Contract, the Supplier is taking part in a project requiring Delivery Schedule flexibility. Therefore, Buyer reserves the right at no extra cost to revise the Delivery Schedules and quantities to meet its requirements. Such revisions should be implemented through the issue of a Purchase Order or revision thereof or otherwise implemented through the issue of a revised Delivery Schedule document. The Supplier shall deliver in accordance with the latest revised Delivery Schedule which shall not constitute an amendment to the Purchase Contract under the following conditions:
Warranties: Seller warrants Buyer for an agreed upon warranty period from the Delivery Date, all Goods, Services or Goods furnished in connection with Services will: (a) be new and free from any defects in workmanship, material and design; (b) conform to applicable specifications; (c) be fit for their intended purpose and operate as intended; (d) be free and clear of all liens, security interests or other encumbrances; and (e) not infringe or misappropriate any third party’s intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance. If Buyer gives Seller notice of noncompliance, Seller shall, at its own cost and expense, promptly replace or repair the nonconforming Goods or Services.
Consequential Damages: In the event that the Buyer incurs a loss or is forced by the Buyers end customer to pay any damages, resulting from the fault of the Seller, the Buyer reserves the right to collect back these losses from the Seller.
Indemnification: Seller shall defend, indemnify, and hold harmless Buyer and Buyer’s parent company, its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders, and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, action, judgment, interest, penalty, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder (collectively, “Losses”) arising out of or occurring in connection with Seller’s performance of its obligations or Seller’s negligence, willful misconduct or breach of the Terms of this Order or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
Confidentiality: All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) rightfully and legally known to the Seller at the time of disclosure; or (c) rightfully and legally obtained by the Seller on a non-confidential basis from a third party.
Insurance: In case of Service orders, Seller shall provide Buyer with a certificate of insurance evidencing the coverage specified in this Order. Sellers who deliver product shall provide evidence of coverage of automotive insurance and workman’s compensation insurance.
Compliance of laws: The Seller shall ensure that persons associated with it or other persons who are involved in any way with this Order shall: (a) comply with the Foreign Corrupt Practices Act ( b) maintain adequate policies and procedures to prevent and detect bribery and corruption, and inform the Buyer immediately (in writing) in the case of any breach, investigation or prosecution there under;(c) promptly report to the Buyer any request or demand for any undue financial or other advantage of any kind received by the Seller in connection with the performance of this Order; and (d) immediately notify the Buyer (in writing) if a foreign public official becomes an officer or employee of the Seller or acquires a direct or indirect interest in the Seller .The Seller as well warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Order. Seller warrants that, in the performance of this Purchase Order, it will comply with all applicable national, provincial, state and local laws, including without limitation laws relating to labor relations, equal employment opportunity, occupational health and safety and protection of the environment. All goods supplied to the Buyer shall be in compliance with applicable environmental requirements and regulations from Canada, U.S.A, and Europe, including RoHS, REACH and their
amendments. All goods supplied to the Buyer shall be in compliance with the 2010 United States Legislation, Dodd-Frank Wall Street Reform and Consumer Protection Act, Section 1502. It is the responsibility of the Seller to ensure they periodically review their compliance information as RoHS, REACH and other regulations change periodically. Seller agrees to provide the Buyer with any requested EHS compliance data and or Certificates on Compliance upon request.
Export Compliances: Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits required by law to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Supplier will take all reasonable steps to minimize Customs Duties costs. If Seller fails to comply with the laws, orders, rules, ordinances and regulations and as a result Buyer is fined, Seller agrees to pay the fine and costs incident thereto or reimburse Buyer for payment.
Unforeseeable circumstances (Force Majeure): Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, terrorist acts, riots, strike, or embargoes. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from performance for a continuous period of more than fifteen (15) business days, Buyer may terminate this Order immediately by giving written notice to Seller.
Services: Any Seller that may perform Services represents itself as qualified and able to perform. Seller shall perform Services pursuant to the industry standard of care. Buyer will furnish materials, equipment and machinery only if and to the extent set forth in the Order. Seller will report immediately to Buyer any event or circumstance which Seller knows or reasonably suspects is, or results from, a violation of Buyer’s policies or law set forth herein. Seller will, at its sole cost and expense, repair or replace any real or personal property belonging to Buyer that Seller, its employees or agents may damage, destroy or remove while performing or result from performing this Order.
Termination: Buyer may terminate this Order, in whole or in part, for any reason upon fourteen (14) days’ prior written notice to Seller. In addition to any remedies provided herein, Buyer may terminate this Order with immediate effect, either before or after acceptance of Goods or Services, if Seller has breached any of the Terms herein. If the Seller becomes insolvent, commences or has commenced by it or against it bankruptcy proceedings, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Order. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods or Services received and accepted by Buyer prior to the termination.
Governing Laws: All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the state, province or territory identified in the address for the Buyer on the Order, excluding its choice or conflict of law rules. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the federal and/or state, provincial or territorial courts in the state, province or territory identified in the address for the Buyer on the Order and the courts of appeal from them.